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[2015] ZALCPE 56
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Fire Sprinkler Installation CC v Metal and Engineering Industries Bargaining Council and Others (P539/12) [2015] ZALCPE 56 (30 October 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
no: P 539/12
In
the matter between:
FIRE
SPRINKLER INSTALLATION
CC
Applicant
and
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
First Respondent
MALUSI
MBULI
N.O
Second Respondent
SAEWA
OBO J T
LITHOLI
Third Respondent
Heard:
2 September 2015
Delivered:
30 October 2015
Summary:
When the arbitrator’s conduct of disregarding material evidence
has an effect on the reasonableness
of his or her award, the award
may be reviewed and set aside.
JUDGMENT
LALLIE,
J
[1]
This is an application to review and set aside an arbitration award
of the second respondent who I will refer to in this judgment
as the
arbitrator. The factual background of this matter is that the
individual
third respondent, Ms Litholi (Litholi) was employed
by the applicant as a cleaner in 2001. She was dismissed for
misconduct on
8 February 2012. Aggrieved by the dismissal, the third
respondent referred an unfair dismissal dispute to the first
respondent
where the arbitrator issued an award in which he found
Litholi’s dismissal substantively unfair and ordered her
reinstatement.
It is that award which the applicant seeks this court
to review and set aside.
[2]
The conduct which led to Litholi’s dismissal is mainly common
cause. The applicant makes use of a siren to regulate working
time.
It rings at 07h25 for employees to go to their workstations and at
07h30 for employees to start performing their duties.
On 23 January
2012, Litholi was seen entering the workplace at 07h45. The
applicant’s version, at the arbitration, was that
Litholi had
reported late for duty while on final written warning for the same
misconduct. The third respondent denied. Litholi
testified that, on
the day in question, she reported for duty at about 07h18. She
received a telephone call from her brother who
was waiting for her
outside the premises of the applicant. Her brother had brought her
money which she had borrowed. She went out
to fetch it and arrived at
her work station late. She was charged with:
‘
1
DISHONESTY/MAKING FALSE STATEMENTS in that on the 23rd January 2012
you informed
your employer that you reported for duty on time but
left the premises and that is why you were late however you only
arrived at
the premises after the start of your shift.
2
REPORTING LATE FOR DUTY in that on the 23rd January 2012 you reported
at
07h45 instead of the start of your shift at 07h30.
3
CONDUCT AFFECTING THE EMPLOYER/EMPLOYEE RELATIONSHIP DETRIMENTALLY in
that
the above misconduct (sic) the trust relationship had
irretrievably broken down between yourself and your employer.’
[3]
Litholi was found guilty of all the charges and dismissed. The
arbitrator found that the three charges were interlinked as they
related to the same incident of 23 January 2012 when Litholi was
alleged to have reported late for duty. The arbitrator accepted
the
third respondent’s version that Litholi reported early for work
on 23 January 2012, went to her brother who was waiting
outside and
re-entered the respondent’s premises at 07h45. He concluded
that Litholi did not commit any transgression. He
noted that she had
final written warnings for late coming.
[4]
The applicant’s grounds for review were that the arbitrator
committed a gross irregularity in that he misconstrued the
issue
before him. He failed to take into account relevant evidence before
him. He erred in accepting the third respondent’s
evidence that
Litholi was underpaid. He failed to consider that the third
respondent conceded to have started working late. He
failed to attach
appropriate weight to the evidence that Litholi had warnings for
reporting late for duty. It was the applicant’s
case that the
irregularities committed and mistakes made by the arbitrator rendered
his award unreasonable. The third respondent
opposed the application
mainly on the basis that the arbitrator’s decision was correct.
It sought to rely on the difference
between reporting late for duty
and starting work late. It submitted that Litholi was not dismissed
for starting work late. The
misconduct for which she was dismissed
was, so went the argument, not approved.
[5]
The test for review is settled. It is whether the arbitrator’s
decision is one which a reasonable decision-maker could
not reach on
the evidence before the arbitrator.
[1]
In
Herholdt
v Nedbank Limited
and
Congress of South African Trade Unions
,
[2]
it was held that an arbitration award issued by an arbitrator
who misconstrued the issue before him or her is unreasonable.
In
Gold
Fields Mine SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and Others
,
[3]
the court expressed the duty of the reviewing court to be to
ascertain whether the arbitrator considered the principal issue,
evaluated the facts presented and came to a conclusion that is
reasonable.
[6]
In determining the substantive fairness of Litholi’s dismissal,
the arbitrator was required to take into account the guidelines
in
item 7 of schedule 8 to the LRA and consider whether Litholi
contravened a valid rule regulating conduct at the applicant, whether
Litholi was aware of the rule, whether the rule was applied
consistently and whether dismissal was the appropriate sanction.
[7]
The arbitrator made a finding that for a dismissal to be fair, it
must be for a valid reason because of the serious nature of
the
transgression and the fact that the employee had committed such
transgression. He stated that he could not find any of the
two
factors in the dispute before him. He rejected the applicant’s
version that Litholi had committed a transgression of
a serious
nature which warranted dismissal. In reaching his decision, the
arbitrator misconstrued the dispute before him in that
he failed to
determine whether Litholi had breached one of the applicant’s
rules of conduct, the gravity of which warranted
dismissal. One of
the charges which led to Litholi’s dismissal was reporting late
for duty on 23 January 2012 in that she
reported for duty at 07h45
instead of 07h30. Litholi’s evidence corroborated the
applicant’s evidence because she testified
that she arrived at
work at 07h18 and received a telephone call from her brother whom she
joined outside the applicant’s
premises. They had a
conversation about her financial problems. She heard the first and
second siren ring but she kept talking
to her brother until she saw a
managers’ car drive into the applicant’s premises. It is
then that she walked in for
purposes of performing her duties. It is
common cause that the time was 07h45.
[8]
Litholi’s evidence was that she started performing her duties
after 07h45 on 23 January 2012. The conclusion that Litholi
did not
report late for duty on the day in question because she arrived at
work at 07h18 is untenable. It overlooks the unchallenged
evidence
that the siren rang at 07h25 to warn employees that in five minutes
time they had to be at their workstations performing
their duties.
Litholi was aware that she should have been at her workstation at
07h30. She heard both sirens but took a conscious
decision to ignore
them, for no valid reason and only returned to the applicant’s
premises when she saw a manager’s
car. On her own version, she
made herself guilty of reporting for duty late at a time she was on
final written warning for similar
misconduct. The arbitrator’s
decision that Litholi committed no misconduct is not based on the
evidence before him. In
Herholdt
(
supra
) it was held
that a decision which is not based on the evidence before an
arbitrator is unreasonable. Further, by not considering
the evidence
which proved that Litholi made herself guilty of misconduct, the
arbitrator failed to deal with the principal issue
before him and to
evaluate the facts before him; thus committing a gross irregularity
which rendered his award unreasonable.
[9]
The applicant sought an order substituting the arbitration award. The
applicant filed a record of the arbitration proceedings
which has
sufficient information on which the order can be based. It is common
cause that on 23 January 2012, Litholi made herself
guilty of
reporting for duty at 07h45 instead of 07h30. By so doing, she
breached the applicant’s rule regulating hours of
work. She was
aware of the rule. She had breached it and was issued with a final
written warning which was still in force on 23
January 2012. She
heard the siren warning her that she had five minutes within which to
be at her workstation. She ignored it and
kept discussing her
financial problems with her brother. Had a manager’s car not
driven into the applicant’s premises,
no one knows when she
would have elected to start performing her duties. She proffered no
valid reason for commencing her duties
late. Her mere presence at
07h18 was of no value to the applicant as she was required to be at
work for the purpose of doing work
allocated to her from the
beginning of her shift. There is, therefore, no reason to conclude
that dismissal was not the appropriate
sanction as she was on a final
written warning for similar misconduct. Her dismissal was therefore
fair.
[10]
In the premises, the following order is made:
10.1
The arbitration award issued by the second respondent under case
number 619 and dated 11 October 2012 is
reviewed and set aside and
substituted with the following:
(a)
Litholi’s dismissal was substantively fair.
_____________________
Lallie
Judge of the Labour Court
of South Africa
Appearances:
For
the Applicant:
Mr Unwin of Unwin Attorneys
For
the Third Respondent: Mr Engeibrencht of SAEWA
[1]
See
Sidumo
and Another v Rustenburg Platinum Mines and Others
(2007)
28
ILJ
2405 (CC) at para 110.
[2]
(2013) 34
ILJ
2798
(SCA) at para 25.
[3]
(2014) 35
ILJ
943 (LAC) at para 16.